Thursday, July 28, 2016

EU and the UK - Collection of posts

Here are links to the various posts on this blog since February 2016.  These posts contain links to many more articles and posts on the subject of the EU referendum and Brexit.

Post Referendum

It is Brexit (4) - Legal consequences

It is Brexit (6) - Parliamentary material

It is Brexit (8) - Points of interest
Pre Referendum (23rd June)

20th February - Brexit ~ referendum ~ a few points - including link to the deal secured by the Prime Minister

UK and the EU (1) -
History and Background

UK and the EU (2) -
The EU Treaties - key points

UK and the EU (3) -
The Parliament, the Commission and the Court

UK and the EU (4) -
Freedom of movement of persons

UK and the EU (5) -
Referendum - People need facts not slogans (Lord King)

UK and the EU (6) -
Will Brexit be a simple process?

UK and the EU (7) -
Your Rights

UK and the EU (8) -
Trading bloc or emergent State

UK and the EU (9) -
A monumental referendum - information to assist

UK and the EU (10) -
What if it is Brexit 

UK and the EU (11) -
The event horizon approaches - What if it is Brexit

UK and the EU (12) -
Final post of this series

EU negotiators for Brexit

Michel Barnier
The President of the European Commission has announced that French politician Michel Barnier will lead the Commission's "taskforce" negotiating with the UK on Brexit - Commission announcement 27th July.   Michel Barnier, as Chief Negotiator, will be ranked at Director-General level and will take up his duties as of 1 October 2016.  The announcement states that - "In line with the principle of 'no negotiation without notification', the task of the Chief Negotiator in the coming months will be to prepare the ground internally for the work ahead. Once the Article 50 process is triggered, he will take the necessary contacts with the UK authorities and all other EU and Member State interlocutors."

The Telegraph 28th July looked at Michel Barnier's background and they note that he is likely to be "a tough negotiator and take a hard line on EU rules."  It seems that he has insisted that Britain will have to accept freedom of movement - "without exception or nuance" if it wants to retain access to the single market and also there will be no negotiation before notification of their farewell letter."

As almost everyone now knows, the exit route is via the Treaty on European Union Article 50.

Article 50(2) - "A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."

TFEU Art 218(3) - "The Commission, ........, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team."  [My emphasis].

I read this as saying that it is for the European Council, and not the Commission, to authorise negotiations and to nominate the EU's lead negotiator.

The last European Council meeting was on 28th June - see the Conclusions.  The next meeting is in Bratislava in September.  The 28th June conclusions report that the UK Prime Minister informed the Council of the outcome of the referendum.  Nothing is recorded in the conclusions about the opening of negotiations (which would not take place unless and until the UK gives notice under Art 50 TEU).

On 29th June, the European Council (minus UK) held an informal meeting and made various observations about the UK referendum - see Informal meeting at 27 - Brussels, 29 June 2016 - Statement.

In June, it was announced that Mr Didier Seeuws had been appointed to lead a Brexit taskforce of negotiators.  Mr Seeuws will be working for the Secretary-General of the European Council (Mr Jeppe Tranholm-Mikkelsen).  The appointment of Mr Seeuws is considered at Open Europe 27th July where it is noted that:

"Article 50 states that the exit agreement between the EU and a departing member state “shall be concluded on behalf of the Union by the [European] Council, acting by a qualified majority, after obtaining the consent of the European Parliament”, and the Council has already appointed the veteran Belgian diplomat Didier Seeuws to lead its own internal Brexit task-force. Given the high stakes and political sensitivities around Brexit member states will want to maintain close oversight of the process as opposed to leaving it to the Commission (some member states place a large share of the blame for Brexit at the door of the Commission in the first place). In the end, it is the member states that set the negotiating mandate for the EU, meaning Barnier (as well as Juncker and his UK-sceptic Chief of Staff Martin Selmayr) could find their hands tied somewhat." 

See General Secretariat of the Council

A very good, and detailed, analysis of the Treaty provisions relating to leaving the EU is by Dr Philip Syrpis (of Bristol University).  Please see his article What next? An analysis of the EU law questions surrounding Article 50 TEU: Part One and also Part 2.

Also, please watch Chatham House 18th July - where Professor Sionaidh Douglas-Scott considers Brexit.


Via Twitter ....

Wednesday, July 27, 2016

Five UK Supreme Court jdugments

Here are links to the latest five judgments of the Supreme Court of the UK:

(1) Lee-Hirons (Appellant) v Secretary of State for Justice (Respondent)
Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Toulson

(2) Bailey and another (Respondents) v Angove's PTY Limited (Appellant)
Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

(3) Hayward (Respondent) v Zurich Insurance Company plc (Appellant)
Lord Neuberger, Lady Hale, Lord Clarke, Lord Reed, Lord Toulson

(4) Secretary of State for the Home Department (Appellant) v Franco Vomero (Italy) (Respondent)
Lady Hale, Lord Mance, Lord Wilson, Lord Reed, Lord Hughes

(5) Hastings Borough Council (Appellant) v Manolete Partners Plc (Respondent)
Lady Hale, Lord Kerr, Lord Carnwath, Lord Toulson, Lord Hodge

In the present circumstances of Brexit - Number 4 will be of particular interest since it concerns whether an individual convicted of manslaughter may be deported from the UK.  The court has made references to the Court of Justice of the EU with a view to clarification of the law.

Tuesday, July 26, 2016

Beyond Brexit ~ EFTA and EEA?

Sunrise Scarborough 26/07/16
Alternatives to membership of the EU are under active consideration.  As a member of the EU, the UK is also a member of the European Economic Area (EEA) but is not a member of the European Free Trade Association (EFTA).   This post takes a brief look at the EEA and EFTA.   

Whatever alternative to EU membership comes about it is perhaps worth reflecting that the government (any government) can only do its best to juggle the various balls including the possibility of considerable difficulty with Scotland and Northern Ireland.  There is going to be no silver bullet solution and any solution is bound to disappoint some people.

One alternative to EU membership may be for the UK to continue its EEA membership and join EFTA.  This post does not discuss whether this is possible politically but readers will find this article by Aidan O'Neill QC * interesting as well as looking back at the information published by the government during the referendum campaign on alternatives to EU membership.  

European Free Trade Association (EFTA):

In 1960, the European Free Trade Association (EFTA) was founded by the following seven countries: Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Finland joined in 1961, Iceland in 1970 and Liechtenstein in 1991. In 1973, the United Kingdom and Denmark left EFTA to join the EC. They were followed by Portugal in 1986 and by Austria, Finland and Sweden in 1995. Today the EFTA Member States are Iceland, Liechtenstein, Norway and Switzerland.

The immediate aim of the Association was to provide a framework for the liberalisation of trade in goods amongst its Member States. At the same time, EFTA was established as an economic counterbalance to the more politically driven European Economic Community (EEC). Relations with the EEC, later the European Community (EC) and the European Union (EU), have been at the core of EFTA activities from the beginning. In the 1970s, the EFTA States concluded free trade agreements with the EC; in 1994 the EEA Agreement entered into force. Since the beginning of the 1990s, EFTA has actively pursued trade relations with third countries in and beyond Europe. The first partners were the Central and Eastern European countries, followed by the countries in the Mediterranean area. In recent years, EFTA's network of free trade agreements has reached across the Atlantic as well as into Asia.

EFTA today maintains the management of the EFTA Convention (intra-EFTA trade), the European Economic Area (EEA) Agreement (EFTA-EU relations), and the EFTA Free Trade Agreements (third country relations). The EFTA Convention and EFTA free trade agreements are managed by the Geneva office, and the EEA Agreement by the Brussels office.

European Economic Area (EEA):

The EFTA website contains a wealth of information about the European Economic Area (EEA) which comprises EU member states and also Iceland, Liechtenstein and Norway.  The EEA came into being on 1st January 1994 as a result of the 1992 Oporto agreement.  Switzerland is not part of the EEA Agreement, but has a bilateral agreement with the EU.

The EEA Agreement provides for the inclusion of EU legislation covering the four freedoms — the free movement of goods, services, persons and capital — throughout the 31 EEA States. In addition, the Agreement covers cooperation in other important areas such as research and development, education, social policy, the environment, consumer protection, tourism and culture, collectively known as “flanking and horizontal” policies. The Agreement guarantees equal rights and obligations within the Internal Market for citizens and economic operators in the EEA.

Free movement of persons is likely to be a sticking point given the role played by immigration in the referendum campaign.  On this, see EU Law Analysis - Freedom of movement of persons in the EEA - different from the EU?

The EEA Agreement does not cover the following EU policies:
  • Common Agriculture and Fisheries Policies (although the Agreement contains provisions on various aspects of trade in agricultural and fish products);
  • Customs Union;
  • Common Trade Policy;
  • Common Foreign and Security Policy;
  • Justice and Home Affairs (even though the EFTA countries are part of the Schengen area); or
  • Monetary Union (EMU). 
* Re article by Aidan O'Neill - see make up of the Scottish Parliament  and the reference in the article to Donald Davis should read David Davis.

Further reading - Ana Bobic and Josephine van Zeben - Negotiating Brexit: Can the UK have its cake and eat it?  (UK Constitutional Law Group blog).

    Monday, July 25, 2016

    Elizabeth Mary Truss sworn in as Lord High Chancellor of Great Britain

    The swearing in of a new Lord High Chancellor of Great Britain takes place in the courtroom of the Lord Chief Justice of England and Wales. Thanks to the Law Society Gazette, the recent ceremony may be viewed online - Law Society Gazette 22nd July 2016.  Elizabeth Truss is the first female holder of the office of Lord High Chancellor of Great Britain - (usually abbreviated to Lord Chancellor or LC).  Great Britain dates from the Act of Union with Scotland.

    There is much play

    in the speeches about the pivotal importance of the rule of law.  A key part of the rule of law is that the citizen is able to access justice in order to enforce rights and legal aid is crucial to this.  A review, and improvement of, legal aid provision is essential.

    Legal representation at inquests is of great importance to families in those situations where a public body (e.g. the Police or the NHS) may be implicated in the death.  Public bodies are always represented by lawyers but families are not unless they are able to qualify for exceptional funding.  The Chief Coroner has called for legal aid to be provided to such families - The Guardian 25th July.

    And just in case anyone thinks that the criminal justice system is all things perfect - please read and reflect on this excellent post by Barrister blogger.

    Elizabeth Truss also spoke of contract law and why the English legal system is seen as a preference to those entering into contracts.  There can be no doubt that the legal world has been of huge benefit to the UK economy.  The question is whether this will continue.  For instance, would there be a willingness to have disputes litigated in London if the dispute involved EU law and the UK was no longer a member?   (There has even been some talk of dropping EU law as a subject in law degrees - a mistake in my view).  Also, other legal systems (notably Germany and France) have to be seen as major competitors in this market - see this article by Jonathan Goldsmith Undermining the UK legal system?

    The swearing in ceremony ended with the Attorney-General asking that the proceedings be recorded in the books of the Queen's Remembrancer.  The office of QR is the oldest judicial office and it dates from the reign of Henry II (1154).   Today, the QR is the senior Master of the Queen's Bench Division of the High Court.  The Masters play a major part in the procedural aspects of litigation.  The post is held by Barbara Fontaine who, incidentally, is the first female holder.

    Saturday, July 23, 2016

    Human Rights and Legal Aid - what will the new government do?

    We know that, as Home Secretary, Theresa May was not a fan - (her word not mine - read this) - of the European Convention on Human Rights which she saw as making it difficult to achieve her policy objectives.  She is on record as saying that the UK should leave the European Convention - Theresa May's speech on Brexit 25th April 2016.  We also know that the Conservative Party manifesto in 2015 promised a British Bill of Rights to replace what was described as "Labour's Human Rights Act."  The manifesto said (page 73):

    "We will scrap Labour's Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.   The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights."

    When launching her bid for the Conservative Party leadership, Theresa May indicated that leaving the European Convention on Human Rights "divides people and has no parliamentary majority."  It may therefore be unlikely for the near future that the government will attempt to leave the ECHR (see Rightsinfo 30th June) but there can be no doubt that the British Bill of Rights agenda remains in place and this is demonstrated by the answer of Sir Oliver Heald QC to a question put by Harriet Harman MP - "We will set out our proposals for a Bill of Rights in due course. We will consult fully on our proposals."

    This takes us no closer to knowing what their proposed "Bill of Rights" will contain than we were when things were in the hands of Michael Gove and Dominic Raab (post of 2nd February 2016).   Nevertheless, the new Ministers will have inherited their work.  Repeal of the Human Rights Act will inevitably accompany any British Bill of Rights and it would be surprising if the Gove/Raab work did not indicate the difficulties that will arise with Scotland and Northern Ireland of altering human rights protection.

    The voting records of the new Justice Ministers on equality and human rights are of some interest and may be seen via They Work For You.  The website records that Elizabeth Truss has a mixed voting record on laws to promote equality and human rights and on 26th May 2016 she voted in favour of repeal of the Human Rights Act.  Sir Oliver Heald, Sam Gyimah and Phillip Lee are all recorded as having generally voted against laws to promote equality and human rights.

    Whilst we must wait and see what the new Ministerial team actually does, there is some reason for concern over human rights protection under the new government.  Let us hope for a pleasant surprise  but this may not be likely from a government headed by a politician who once told the House of Commons that the government was "disappointed and appalled" by a decision of the Supreme Court on a human rights point?  The case was R (F) and Thompson v Home Secretary [2010] UKSC 17.

    Turning (briefly) to the topic of legal aid.  Readers will be aware that the scope of civil legal aid was drastically reduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  When the Act came into force there was a Ministerial promise that matters would be reviewed after 3 years - The Guardian 31st March 2016.  As was inevitable, the Act has worked serious injustice and some of this is traced by retired Lord Justice of Appeal Sir Henry Brooke on his blog - Stories of Injustice.   On his Learned Friend blog, Nigel Poole QC looks at funding for legal representation at inquests and calls for this to be improved.

    Lord Bach is chairing a Commission to examine Access to Justice - the Bach Commission.  Also see Labour Party Legal Aid Review.

    Friday, July 22, 2016

    Some Friday reflections ~ 4 weeks after the referendum and 2 after Chilcot

    4 weeks have elapsed since the EU referendum result was announced and the "fall out" from that momentous decision is continuing.  Whilst many of the issues were entirely foreseeable, they must now be addressed.

    Those weeks have seen the appointment, by HM The Queen, of Theresa May as Prime Minister and the formation of a new central government for the United Kingdom.  No general election is required (see footnote) and is not permitted anyway unless the Fixed-Term Parliaments Act 2011 is followed.

    The Prime Minister has asserted that "Brexit means Brexit" but Article 50 of the Treaty on European Union will not be triggered by the UK in what is left of 2016.    Ministers (and several legal commentators) have asserted that Parliamentary consent is not required for Article 50 to be triggered and a challenge to this view is now proceeding in the High Court.  Article 50 requires that the State seeking to leave the EU has made a decision to do so in accordance with its constitutional requirements - see  Article 50(1).   It would be rather odd if, in a Parliamentary democracy like the UK, a decision to leave the EU can be made without the specific approval of Parliament.  For various views on this question please see It is Brexit (3) - The role of Parliament and also this article by Colm O'Cinneide in the UK Constitutional Law Blog where it is argued that there are "compelling reasons of constitutional principle as to why Parliament should approve any invocation of Article 50. As the institution that is supposed to serve as the representative voice of the people, Parliament is given a central role in the UK constitutional order. It would be compatible with its sovereign status for it to have the final say as to whether and when the Article 50 trigger is pulled – and, by extension, it would enhance the democratic legitimacy of this decision."

    The House of Lords European Union Committee has published a report arguing that all aspects of the negotiations on the UK withdrawal from the EU, including trade negotiations, should be effectively scrutinised by Parliament.  Brick Court Chambers, as part of their Brexit Law blog, has looked at the EU Committee report and they note that several panellists at Brick Court’s Brexit and the UK Constitution panel discussion (21st July) expressed similar views, both about the need for full Parliamentary scrutiny of the UK’s Brexit negotiations and balancing any need for secrecy with sufficient transparency, although views differed on the likelihood of secrecy being successfully maintained in a negotiation with 27 other EU Member States and the EU institutions.

    Other articles of interest are:

    Jo Murkens (Associate Professor of Law at LSE) argues that Westminster must choose between leaving the EU and retaining the UK.  Theresa May has expressed belief in the United Kingdom as a Union but how to preserve this will present a major political challenge given the Remain majorities in Scotland and Northern Ireland.

    Martin Kettle - The Guardian 21st July - Theresa May will soon have to decide which Brexit to take.  "In the end, everything she has said points to Theresa May preferring a Brexit that delivers tighter border controls to a Brexit that delivers the market freedom the banks want. Is she ready for that choice and all that could follow it? The implications for Britain and its new prime minister would indeed be historic."

    An article published by Business Insider suggests that Brexit may never happen and they advance their reasons for this and suggest that it is in the government's interests to delay matters.  However that may be, it could not be desirable for uncertainty to drag on in the way suggested. 

    Open Canada has published an article by Jeremy Kinsman (a former Canadian High Commissioner).  It will not make for happy reading in David Cameron' study since it describes in  detail how the Remain campaign failed.  It is rather like rummaging through the wreckage after the accident and saying - "I told you so!"

    Prospect Magazine - It's not over until it's over - takes the view that with some modest reforms the UK could stay in the EU while obtaining the deal it wants but "all that is needed is flexibility from both sides."

    "If there is one fixed point in the hurricane of politics in post-referendum Britain it is the dogma that referendums are sacrosanct. The people, it is claimed, have made an irreversible decision to take Britain out of the European Union—and however dire the consequences of this decision, democracy requires “the people’s will” to be obeyed. This dogma is a travesty of true democracy. Insisting that a referendum vote can never be reversed or even challenged conflicts with history, with law and, most importantly, with democratic principles. In genuine democracy nothing is ever irreversible, since every decision, regardless of the majority that supports it, is always open to debate."

    For a Scottish perspective on Brexit see Lallands Peatworrier - Scotland's future: Brexit on Brexiteers terms. Unless ...


    Not too much has been heard of Chilcot since the publication of his Iraq Inquiry report.  It has been debated in Parliament - Commons and Lords.  This article by Phillipe Sands QC is well worth reading - A grand and disastrous deceit.  "On legal matters, Blair manipulated the process, forcing the attorney general to give legal advice at the last possible moment, with troops already massed and a coalition ready to roll. He would have known that Goldsmith was less likely at that stage to have said that war would be illegal. The pressure must have been intense. Since it would make it harder to obtain the support of cabinet and Parliament, and the public, his formal advice – the 7 March document permeated with an understanding of the uncertainty and risk involved in going to war – was deliberately withheld from cabinet. The redacted and recast document of 17 March, the written answer that went to Parliament, cabinet and the people, was an instrument of persuasion that aimed to create the impression that Goldsmith had advised that the war was unequivocally lawful. The document did mislead. It was the product of calculated manipulation enabled by silences and lies, a grand and disastrous deceit."